from the say-what-now? dept

Well, this is odd. Back in March, some book publishers and authors started blaming Scribd for hosting infringing scanned and uploaded books. Of course, they ignored the fact that Scribd is quite aggressive in taking down any infringing content that it discovers, and has a filtering system to try to catch as much as possible. Under any reasonable reading of the DMCA, Scribd is protected under the safe harbors. It's not doing the actual infringing itself, but providing a tool, and it appears to go above and beyond the legal requirements in trying to help authors and publishers.

Yet, given that noise back in March, you had to know that a lawsuit was brewing, and it's not too surprising to find out that the first one filed is a class action attempt. What is surprising, however, is that the lawyers bringing the case, Joe Sibley and Kiwi Camara, are the same lawyers who represented Jammie Thomas in her recent loss to the record labels. Camara and Sibley, in that case, failed to do some of the most basic things you would have expected in such a defense (though, they were brought on to her defense just before the trial began).

Their argument against Scribd doesn't seem to make much sense at all:

"Under the aegis of self-promoting misinterpretations of federal statutes," the lawyers wrote in their complaint, "the West Coast technology industry has produced a number of start-up firms premised on the notion that commercial copyright infringement is not illegal, unless and until the injured party discovers and complains of the infringing activity, and (the) infringer fails to respond to such complaints."

That's simply not true in any sense of what they describe. None of the companies -- Scribd included -- is claiming that infringement is not against the law. They're just saying -- and the law pretty clearly reflects this -- that it is not their liability for infringements done by users. No one is denying the right of the copyright holders to go after those who actually did the uploading. Camara and Sibley seem to be making up a strawman that completely ignores the actual arguments. They continue:

"Apparently (the West Coast start-ups) believe any business may misappropriate and then publish intellectual property, as long as it ceases to use a stolen work when an author complains...Many millions of dollars have been invested in this business plan."

Again, this is simply incorrect. The businesses themselves are not doing the "misappropriating" or the "publishing." That's the entire reason for the safe harbors in the DMCA, to recognize the difference between a tool provider and a user. That these lawyers can't understand the same difference is highly questionable -- especially right after a court set Universal Music straight on the very same issue. People keep acting as if the DMCA safe harbors mean that copyright infringement is somehow not enforced, but that's a plainly wrong understanding of what's happening in the world. The entire point of the safe harbors is to make sure that the correct party is liable. It still amazes me that otherwise intelligent people can't seem to recognize this distinction.

"I guess none of these people truly understand copyrights and how they tie in with the concept of "Safe Harbors". I can't say that I am not surprised by this one."

No, I bet the lawyers fully understand copyrights and safe harbors. Both Joe Sibley and Kiwi Camara are smart and know copyright law. But lawyers are paid by the hour to *advocate* for their client, even if they don't have a very good case. Lawyers can be amoral, siding with whomever pays them--though I had thought that Sibley and Camara were on the side of reasonable implementation of copyright law, but I guess the decided they needed to make some quick cash to make up for their disastrous pro-bono work for Thomas. Anyway, with lawsuits, their are lots of ways to "win," including getting lucky with a pro-corporate judge, an affronted jury, or just grinding your opponent into the ground through perseverance. Just look at SCO. That company should have died years ago, but it's emaciated corpse is still suing people.

Active Policing

This could be an interesting case from the POV of recent worrying court judgements which seem to be suggesting that safe harbors only apply if you take a hands-off approach to managing a website and you could be liable if you actively remove infringing material over and above takedown requests.

This clearly makes little sense since it effectively encourages website owners to do nothing to police their sites. One possible useful outcome of this case is if it ended up setting a more sensible precedent.

".... It's not doing the actual infringing itself, but providing a tool....".

Of course we know your always right, but it's amusing to note that the Joe public still thinks courts get to decide that stuff. They might also have the silly idea that providing a tool for infringing could also be offensive - LoL.